State of emergency SA: What this would mean for your rights

Six days of violent protests and looting have left parts of KwaZulu-Natal and Gauteng decimated, which has led to increasing calls for the government and President Cyril Ramaphosa to declare a state of emergency in South Africa.

But what exactly would this mean for South Africans? Should we be in favour of this decision without understanding the implications of such a drastic step?

Advocate Wayne Pocock from the Maisels Group of Advocates explains that a state of emergency constitutes a huge limitation of human rights in terms of the State of Emergency Act.

“Our human rights are encapsulated in the Bill of Rights as per the Constitution of the Republic of South Africa being the highest law of our land. The Bill of Rights contains all the rights of all South Africans and affirms our democratic values such as, inter alia, human dignity, equality and freedom and such rights are to be respected, protected, promoted and fulfilled by the state (among many other tights).

“As the highest law of our Land, the Constitution of South Africa applies to all laws and is binding on the legislature, the executive, the judiciary and all organs of state. Certain human rights are inalienable such as equality, human dignity, life, freedom and security of the person etc.”

The difference between a state of disaster and a state of emergency

State of disaster meaning

President Cyril Ramaphosa declared a national state of disaster on 15 March 2020 to combat the Covid-19 pandemic.

“The Disaster Management Act regulates disasters and provides for disaster management centres, volunteers, integrated and coordinated disaster management policy that focuses on preventing or reducing the risk of disasters, mitigating the severity of disasters, emergency preparedness, rapid and effective response to disasters and post-disaster recovery. The period is normally 3 months but can be extended by the Minister on notice (as has been done to date since 27 March 2020).”

– Advocate Wayne Pocock, Maisels Group of Advocates

State of emergency meaning

In terms of section 37 of the Constitution, a state of emergency may be declared when “the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency, and the declaration is necessary to restore peace and order”.

Speaking during a briefing by ministers in the Justice, Crime Prevention and Security (JCPS) cluster on Tuesday, Defence and Military Veterans Minister Nosiviwe Mapisa-Nqakula said she didn’t believe the rioting and looting warranted a state of emergency.

“If the time comes, informed by intelligence gathered and coordinated by the three entities [SAPS, Defence and State Security], the President will be advised and [only] then would he declare a state of emergency, if the need arises, based on that assessment report.”

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Declaring a state of emergency in SA – what you need to know:

• President Cyril Ramaphosa can declare a state of emergency with immediate effect.
• “The state may only declare a state of emergency and any legislation enacted or other action taken in consequence of that declaration, may be effective only prospectively; and for no more than 21 days from the date of the declaration,” explains advocate Pocock. He further adds that the Assembly may extend a declaration of a state of emergency for no more than three months at a time. The first extension of the state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of the Assembly. Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60% of the members of the Assembly.
• Declaring a state of emergency can limit certain human rights such as freedom of movement, the right to education and all social-economic rights.
• The right of life and human dignity is still protected under a state of emergency.
• Any competent court can challenge the declaration of a state of emergency and any measures taken under it.
• Emergency measures may not indemnify the government or individuals for illegal actions.
• The government can’t ask for military service beyond that required by the ordinary laws governing the defence force.
• There are very strict limits on any detention without trial during a state of emergency. A relative or friend of the detainee should be informed of their detention. and the name and place of where they are being detained must be published in the Government Gazette. They must also have access to a doctor and a legal representative.